ORDINANCE ESTABLISHING CHAPTER 22 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; PROHIBITING WAGE THEFT, PROVIDING ADMINISTRATIVE PROCEDURES AND PRIVATE CAUSE OF ACTION FOR WAGE THEFT PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE

Indexes:

AMENDING CODE

WAGES

Sponsors:

Natacha Seijas, Prime Sponsor

Jose "Pepe" Diaz, Co-Sponsor

Audrey M. Edmonson, Co-Sponsor

Sally A. Heyman, Co-Sponsor

Rebeca Sosa, Co-Sponsor

Bruno A. Barreiro, Prime Sponsor

Barbara J. Jordan, Prime Sponsor

Dennis C. Moss, Prime Sponsor

Katy Sorenson, Co-Sponsor

Dorrin D. Rolle, Co-Sponsor

Sunset Provision:
Yes

Effective Date:

Expiration Date:

Registered Lobbyist:

None Listed

Legislative History

Acting Body

Date

Agenda Item

Action

Sent To

Due Date

Returned

Pass/Fail

Board of County Commissioners

2/18/2010

7A

Amended

REPORT:

(See Agenda Item 7A Amended; Legislative File No. 100638)

Commission Auditor

2/5/2010

Legislative notes attached

2/18/2010

Government Operations Committee

1/12/2010

1E1

Forwarded to BCC with a favorable recommendation

P

REPORT:

Assistant County Attorney Geri Bonzon-Keenan read the foregoing proposed ordinance into the record.
Chairman Gimenez opened the public hearing and called for persons wishing to appear before the Committee in connection with this proposed ordinance.
The following persons appeared before the Committee in support of this proposed ordinance:
Ms. Cynthia Hernandez, 1847 SW 9th Street, Researcher, Research Institute on Social and Economic Policy, Florida International University. She expressed appreciation to Commissioner Seijas for her initial involvement with wage theft legislation. Ms. Hernandez commented on research performed on wage theft in South Florida.
Mr. Levis Torres appeared on behalf of “We Count.” He said that the organization had received daily complaints from construction and agriculture workers regarding wage theft, and that successful implementation of this proposal would result in more money being recovered for working families.
Mr. Jim Junecko, 701 NE 67 Street, #1, 33138, noted his experience with wage theft while working as a bellman for a hotel. He stated that he was asked to work without breaks, and after working a 16-hour shift, the contracted gratuity was not included in his paycheck.
Reverend Gail Tapsch, Board Member, South Florida Interfaith Worker Justice, and representing the Unitarian Universal of Churches, 3970 NW 21 Avenue, Ft Lauderdale, Florida, noted wage theft cuts to the core of moral issues across all religious and ethical lines. She noted this proposed ordinance could be an opportunity to set a precedent for the County and State.
Ms. Jeanette Smith, 14785 SW 172 Street, representing South Florida Interfaith Worker Justice, noted an incident with Guatemalian workers in South Dade who worked Monday through Saturday without receiving any pay. She pointed out these cases were not unique.
Mr. Jose Rodriguez, 3000 Biscayne Boulevard, Attorney, Florida Legal Services, said the Department of Labor would state that they had no jurisdiction and most workers could not afford an attorney. Mr. Rodriguez noted this ordinance protects both good businesses and victims.
Ms. Emily Eisenhauer, 720 15 Street, Apt. 8, Miami Beach, Florida 33139, Research Institute on Social and Economic Policy, Florida International University, noted wage theft impacts family and communities and took away money needed to circulate through the local economy. She stated that the economic impact of this problem was greater than the cost of implementing the ordinance. Ms. Eisenhauer noted this proposal impacts businesses and workers.
Reverend Renwick Bell, 5050 NE 26 Terrace, Light House Point, Florida 33064, appeared on behalf of Rabbi Solomon Schiff, President, South Florida Interfaith Worker Justice. He spoke in support of this proposed ordinance and emphasized the need to empower those who are powerless.
Mr. Fred Frost, 10961 SW 155 Place, Miami, Florida 33196, South Florida AFL-CIO, appeared in support of this proposed ordinance. He noted too many people were not getting paid.
Ms. Francesca Menes, organizer, Florida Immigrant Coalition, (FIC) 8325 NE 2nd Avenue, Miami, Florida 33138, noted the FIC was comprised of a coalition of faith, union, community organizations, women’s organizations, immigrant rights organizations, research institutes, legal service providers and business owners who were in support of this proposal. She referenced a letter of support that was presented to the Committee members and noted the County must send a message that it was not right for people to work and not get paid.
Ms. Renaye Manley, Interfaith Worker Justice national office, 3301 West Bryn Mawr, Chicago, Illinois, appeared in support of this proposed ordinance. She noted Secretary of Labor Hilda Solis had vowed to increase resources to address wage theft; however, it required innovative partnerships and creative use of local enforcement strategies such as this proposal to assist the U.S. Department of Labor in ending the practice of wage theft. Ms. Manley urged the Committee to forward this proposed ordinance to the County Commission with a favorable recommendation.
Ms. Marleine Bastien, 710 NE 152 Street, expressed appreciation to Commissioner Seijas for bringing forth this issue. She noted this proposed ordinance was about restoring the dignity of workers from all walks of life.
Ms. Silvia Cubides, 139 NE 16 Avenue, North Miami Beach, appeared in support. She noted she had been a victim of wage theft and urged the Committee to support this proposal.
After hearing no other persons to come before the Committee, Chairman Gimenez closed the public hearing.
Chairman Gimenez noted he had fiscal concerns with this proposed ordinance and felt that it needed more debate from the County Commission. He recommended that the Committee forward this proposal to the County Commission without a recommendation.
Commissioner Seijas noted she concurred with Chairman Gimenez that this item needed more debate. She said this ordinance would be considered by the County Commission on February 2, 2010 if forwarded through the normal process. However, she would recommend that it be forwarded to the February 18, 2010 County Commission meeting which would allow an additional two weeks for the public to voice their concerns and to contact Chairman Gimenez to address their concerns.
It was moved by Commissioner Seijas that this proposed ordinance be forwarded to the County Commission with a favorable recommendation. This motion was seconded by Commissioner Edmonson.
Commissioner Diaz commended Commissioner Seijas for this proposal and spoke in support. He noted this was an issue of humanity; not a status issue and wage theft was a crime. Commissioner Diaz asked to be listed as a co-sponsor to this ordinance.
Commissioner Sosa stated that it was fair to defend those who had no one to assist them and she was supportive of the intent of this proposed ordinance. She noted; however, that she would like to discuss the implementation of this proposal without additional costs. Commissioner Sosa said this ordinance needed to be implemented without placing a burden on poor workers or on taxpayers.
Commissioner Seijas suggested that Chairman Gimenez schedule a Sunshine Meeting with her to discuss his concerns regarding this proposed ordinance.
Chairman Gimenez concurred with Commissioner Seijas’ suggestion regarding a Sunshine Meeting and asked Assistant County Attorney Eric Rodriguez who crafted this proposal to be available at this Meeting. He also asked Assistant County Attorney Bonzon-Keenan or Mr. Rodriguez to provide him with a report on the Fair Labor Standards Act, Small Claims Court and any State/Federal laws relating to this issue.
Chairman Gimenez said that he had been a union member for 28 years but he now had different responsibilities and had fiscal concerns. Chairman Gimenez noted he would not be able to vote for this ordinance as presented; however, he could vote for an amended version in the future.
Commissioner Edmonson asked to be listed as a co-sponsor.
Assistant County Attorney Geri Bonzon-Keenan advised that normally this ordinance would be forwarded to the February 2, 2010 County Commission meeting. She noted the subsequent Commission meeting was scheduled for February 18, 2010.
Commissioner Seijas requested and Chairman Gimenez concurred that this proposed ordinance be forwarded to the February 18, 2010 County Commission meeting to allow sufficient time for Chairman Gimenez’ concerns to be addressed.
Hearing no further comments or questions, the Committee voted on this proposed ordinance as presented.

Board of County Commissioners

12/15/2009

Tentatively scheduled for a public hearing

Government Operations Committee

1/12/2010

Board of County Commissioners

12/15/2009

4C

Adopted on first reading

1/12/2010

P

REPORT:

Assistant County Attorney Abigail Price-Williams read the foregoing proposed ordinance into the record.
The foregoing proposed ordinance was adopted on first reading and set for public hearing before the Government Operations Committee meeting on Tuesday, January 12, 2010 at 9:30 a.m.

County Attorney

12/3/2009

Referred

Government Operations Committee

1/12/2010

County Attorney

12/3/2009

Assigned

Eric A. Rodriguez

Legislative Text

TITLE

ORDINANCE ESTABLISHING CHAPTER 22 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; PROHIBITING WAGE THEFT, PROVIDING ADMINISTRATIVE PROCEDURES AND PRIVATE CAUSE OF ACTION FOR WAGE THEFT PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE

BODY

BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMIDADE COUNTY, FLORIDA:

Section 1. Chapter 22, Sections 1-10 of the Code of Miami-Dade County, Florida, is hereby established to read as follows:1
>>CHAPTER 22 - WAGE THEFT

Sec. 22-1. Declaration of Policy.
It is hereby declared to be the policy of Miami-Dade County in the exercise of its police power for the public safety, health and general welfare, to eliminate and prevent wage theft. Eliminating the underpayment or nonpayment of wages earned by persons working in the County serves the public purpose by promoting economic security and dignity for those working in the County; by promoting business and economic development through the elimination of unfair economic competition by unscrupulous businesses that do not pay or that underpay their employees; and by relieving the burden on the public that subsidize unscrupulous employers whose employees are forced to rely on public assistance because of unpaid or underpaid wages.

Sec. 22-2. Definitions.

(a) Employee shall mean a natural person who performs work within the geographic boundaries of Miami-Dade County while being employed by an employer, but shall not include any bona fide independent contractor.

(b) Employer shall include any person who, acting either individually or as an officer, agent, or employee of another person, acts directly or indirectly in the interest of a person or entity employing an employee;
but such term does not include:
(1) The United States or a corporation wholly owned by the government of the United States;
(2) The State of Florida;
(3) Miami-Dade County;
(4) The Public Health Trust of Miami-Dade County, or
(5) An Indian Tribe.

(c) The meaning of employ, including as used in the term employment, shall include to suffer or permit to work.

(d) Independent contractor shall have the same meaning as in the Internal Revenue Code and implementing federal regulations.

(e) Wage rate shall mean any form of monetary compensation which the employee agreed to accept in exchange for performing work for the employer, whether daily, hourly, or by piece but in all cases shall be equal to no less than the highest applicable rate established by operation of any federal, state or local law.

(f) Reasonable time shall be presumed to be no later than fourteen calendar days from the date on which the work is performed but may be modified for a period not to exceed thirty days by an express agreement between the employer and the employee which has been reduced to writing and signed by the employee.

(g) Threshold amount shall mean sixty dollars ($60).

(h) Liquidated damages shall mean twice the amount a respondent employer is found to have unlawfully failed to pay the complainant employee. Where an employee is awarded treble damages for wage theft violations, liquidated damages are awarded in addition to back wages in order to compensate for the economic losses suffered by reason of the employee not receiving their wage at the time it was due.

Sec. 22-3. Wage theft violations.

For any employer to fail to pay any portion of wages due to an employee, according to the wage rate applicable to that employee, within a reasonable time from the date on which that employee performed the work for which those wages were compensation, shall be wage theft; and such a violation shall entitle an employee, upon a finding by a hearing examiner appointed by Miami-Dade County or by a court of competent jurisdiction that an employer is found to have unlawfully failed to pay wages, to receive back wages in addition to liquidated damages from that employer.

Sec. 22-4. Procedures for wage theft complaints.

(1) Filing wage theft complaint.

(a) Threshold amount. In order for a complaint to be submitted to the County by, or on behalf of, an aggrieved employee, that employee must allege a wage theft violation in which the unpaid wages are equal to no less than the threshold amount.

(b) Either of the following may file a written, signed complaint with the County using the procedures set forth in an Implementing Order:,

(i) an employee aggrieved by a wage theft action prohibited by this article; or

(ii) any entity a member of which is aggrieved by a violation of this article.

(c) A signed complaint for wage theft must be filed with the County in the manner prescribed by Implementing Order no later than one (1) year after the last date upon which the complainant employee performed the work for a respondent employer with regard to which the employee alleges a violation of this article has occurred ("filing deadline"); however, with respect to alleged ongoing violations, once a complaint has been made in compliance with the filing deadline, the County's enforcement capacity is limited only by the applicable statute(s) of limitations.

(d) The complaint shall set forth the facts upon which it is based with sufficient specificity to identify the respondent or respondents and for the County to determine both that an allegation of wage theft has been made and that the threshold amount has been met.

(2) Respondent.

(a) Upon the filing of any complaint, the County shall promptly determine that the wage theft complaint alleges wage theft, names at least one respondent and meets the threshold amount criterion. The duty of the County in determining whether a complaint meets this criterion is limited to receiving the complaint and comparing the information provided in the complaint to the criteria required herein. This determination is a ministerial act and may not be based on further investigation or the exercise of independent judgment.

(b) Upon making such determination, the County shall serve the complaint and a written notice on the respondent or person charged with the commission of a wage theft practice, setting forth the allegations, rights and obligations of the parties including, but not limited to the right to a due process hearing on the matter before a Hearing Examiner and that the respondent may be responsible for the costs of the Hearing Examiner and other enforcement costs. Such service shall be by certified mail.

(c) Each respondent shall file an answer to the complaint with the County not later than twenty (20) days after receipt of the complaint and notice from the Director.

(3) Subpoenas.

(a) If a Hearing Examiner is appointed, any party may request that a subpoena be issued by the Hearing Examiner. Witnesses summoned by subpoena of the Hearing Examiner shall be entitled to the same witness and mileage fees as are witnesses in proceedings in the County Court of Miami-Dade County, Florida. Fees payable to a witness summoned by subpoena issued at the request of a party shall be paid by the party.

(b) Within ten (10) days after service of a subpoena upon any person, such person may petition the Hearing Examiner to revoke or modify the subpoena. The Hearing Examiner shall grant the petition if it finds that the subpoena requires appearance or attendance at an unreasonable time or place, that it requires production of evidence which does not relate to the matter, that it does not describe with sufficient particularity the evidence to be produced, that compliance would be unduly onerous, or for other good reason.

(c) In the case of the contumacy or refusal to obey a subpoena, the Hearing Examiner or any party may seek enforcement of a subpoena issued under the authority of this chapter by filing a petition for enforcement in the County Court of Miami-Dade County, Florida;

(d) In any enforcement proceedings authorized by this chapter, the court may award to the prevailing party all or part of the costs and Attorney's fees incurred in obtaining the court order as authorized by the Florida Rules of Civil Procedures;

(e) Any person who willfully fails or neglects to attend and testify or to answer any lawful inquiry or to produce records, documents or other evidence, if in his or her power to do so, may be fined by the County Court of Miami-Dade County, Florida, not more than five hundred dollars ($500.00) or imprisoned not more than sixty (60) days or both.

(f) Any person who, makes or causes to be made any false entry or false statement of fact in any report, account, record or other document submitted to the Hearing Examiner pursuant to its subpoena or other order, or shall willfully mutilate, alter or by any other means falsify any documentary evidence, may be fined by the County Court of Miami-Dade County, Florida, not more than five hundred dollars ($500.00) or imprisoned not more than sixty (60) days or both.

(4) Applicability of Florida Rules of Civil Procedure.

(a) The provisions of Rule 1.090, Florida Rules of Civil Procedure, shall govern the computation of any period of time prescribed or allowed by this chapter or by rules, regulations, or orders adopted pursuant to this chapter.

(b) All papers or pleadings required by this chapter to be served may be served by certified mail or in accordance with Rule 1.080, Florida Rules of Civil Procedure.

(5) Standards for Resolving Factual Disputes.

(a) Adequate Records. When the following three conditions are met:

(i) where by operation of some other statute or regulation, a respondent employer has an obligation to keep records of an employee's hours worked and or records of compensation provided to an employee; and

(ii) where such records are imprecise, inadequate or do not exist; and

(iii) where a complainant employee presents sufficient evidence to show, as a matter of just and reasonable inference, the amount of work done or the extent of work done or what compensation is due for the work done;

(b) Then the burden of imprecision falls on the respondent whose obligation it was to keep accurate records and the respondent must come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the complainant's evidence; if the respondent fails to meet this burden, the Hearing Examiner or any court, whichever is applicable, may award approximate damages based on the complainant's evidence.

(6) Conciliation.

(a) It is the policy of the County to encourage conciliation of charges. The County will work with the parties in an attempt to conciliate the agreement. If possible, a written conciliation agreement resolving the dispute between the complainant and the respondent shall be executed prior to the referral of the matter to a Hearing Examiner.

(b) A conciliation agreement arising out of such conciliation shall be an agreement between the respondent and the complainant.

(c) Whenever a party believes that the other party has breached a conciliation agreement, the aggrieved party may file a civil action in a court of competent jurisdiction for enforcement of such agreement.

(d) Nothing said or done in the course of attempting conciliation under this chapter may be used as evidence in any subsequent proceeding under this chapter or otherwise without the written consent of the parties to the underlying charge of violation.

(7) Hearing before Hearing Examiner.

(a) Within fifteen (15) days after the service of the Complaint on the respondent, and after determination that the complaint meets the threshold and other requirements, any party may submit a written request for a hearing before a Hearing Examiner. The County shall appoint a Hearing Examiner that it deems to be qualified to hear wage theft matters. In conducting any hearing to determine whether a violation of this chapter has occurred, the Hearing Examiner shall have the authority to administer oaths, issue subpoenas, compel the production of and receive evidence. The Hearing Examiner shall have the authority to consolidate two or more complaints into a single hearing where such complaints name the same respondent(s) and involve sufficiently similar allegations of fact to justify consolidation. The final determination of the Hearing Examiner in wage theft matters is subject to appeal in a court of competent jurisdiction.

(b) In any hearing before the Hearing Examiner pursuant to this section, the respondent may file a written answer to the complaint. All parties shall appear at the hearing in person, with or without counsel, and may submit evidence, cross-examine witnesses, obtain issuance of subpoenas and otherwise be heard. Testimony taken at the hearing shall be under oath and a transcript shall be made available at cost to any interested party.

(c) Discovery shall be permitted upon motion of any party and shall proceed in the manner provided by the Florida Rules of Civil Procedure.

(d) The Hearing Examiner may direct that the parties submit a prehearing statement addressing the issues of law and fact that will be involved in such hearing, identify the witnesses that will testify, and provide a list of all documents or other types of exhibits that will be submitted.

(e) Upon the conclusion of the hearing, an adjudicative final order shall be issued and served upon the parties setting forth written findings of fact and conclusions of law.

(f) In any proceeding under this article, the burden of proof by a preponderance of the evidence rests upon the complainant.

(8) Representation by Non-lawyer Advocate.

Any person may be represented by counsel in any proceeding herein. Any party, including corporate entities, as an alternative to counsel, may be represented by a nonlawyer advocate authorized by that party in any proceeding herein unless specifically disallowed by the Hearing Examiner for good cause.

(9) Enforcement by private persons or by the State of Florida.

(a) Enforcement by private persons.

(i) If during the pendency of a wage theft violation complaint but prior to the issuance of a final decision by a Hearing Examiner, a complainant employee brings a private action in their own right, whether under state law, federal law, or both, in any state or federal court to seek unpaid wages based upon the same facts and allegations as the complainant employee's complaint to the County, or affirmatively or by consent opts to participate in any such litigation, that complainant employee's complaint of wage theft shall be deemed withdrawn with respect to any respondent employer named as a defendant in such court action. This section shall be interpreted narrowly so as to leave unaffected any cumulative rights which were not the subject of a complaint employee's complaint.

(ii) The County, upon becoming aware of any private action described herein shall advise the complainant and any respondent subject to the private action in writing within fifteen (15) days of this provision and its effect on the complaint. Within thirty (30) days of the issuance of such notice, the County will dismiss, with prejudice, the complainant's complaint only with respect to the respondent or respondents who are named as a defendants to the private action.

(b) Enforcement by the State of Florida. If at any time during the pendency of a complaint of wage theft, the County becomes aware of an enforcement action by the Florida Attorney General or other body of the State of Florida based on wage violations involving the same facts as the complainant employee's complaint to the County, the County will dismiss, either with or without prejudice, the complainant employee's complaint with respect to the respondent or respondents named in such State enforcement action. The County shall advise the complainant and any respondent of such dismissal.

Sec. 22-5. Enforcement of Wage Theft Violations
(1) Order Issued.

At the conclusion of a hearing and upon a finding of a wage violation, the Hearing Examiner shall issue a written order as follows:

(a) if the preponderance of the evidence demonstrates a wage theft violation, the Hearing Examiner shall order the employer to pay wage restitution to the affected employee in an amount equal to three times the amount of back wages that the respondent employer is found to have unlawfully failed to pay the complainant employee; this treble amount shall include the back wages in addition to liquidated damages as compensation for the economic losses suffered by reason of the employee not receiving their wage at the time it was due; and

(b) the County shall order the employer to pay to the Board of County Commissioners an assessment of costs in an amount not to exceed actual administrative processing costs and costs of the hearing.

(2) Failure to Comply with Initial Order.

If the County finds that any respondent employer has failed to comply with the Hearing Examiner’s order within forty-five (45) days after written notice from the County, the County shall issue a further written order on the respondent employer as follows:

(a) the County may, upon request of the respondent, grant the respondent an additional forty-five (45) days to comply with any portion of the order, unless such an extension has previously been granted; and

(b) the County shall order the employer, in addition to wage restitution ordered, to pay the prevailing complainant employee an amount equal to the applicable interest rate which accrues on the full amount of treble damages from the date upon which the finding of wage violation was made until the date upon which the amount is paid in full; and

(c) the County shall order the employer, in addition to assessment of costs ordered, to pay to the Board of County Commissioners an amount equal to the applicable interest rate which accrues on the assessment of costs from the date upon which the Hearing Examiner's order is issued until the date upon which the amount is paid in full; and

(3) Joint and Severable Liability.

In any order issued by the Hearing Examiner, the County may specify two or more respondents as jointly and severally liable for any amount payable to the complainant or the County or both; however, the total amount the complainant or the County may receive from jointly and severally liable respondents shall not exceed the total amount for which respondents are jointly and severally liable.

(4) Cumulative Rights Preserved.

Nothing in this Article shall be construed to limit, preclude or in any way abrogate the cumulative rights or remedies available to employees at common law or by other statute which were not the subject of a complaint employee's complaint or the County’s enforcement actions; such cumulative rights which shall be unaffected by the provisions of this Article unless they are made the subject of a complaint or the County's enforcement action, shall include but shall not be limited to rights related to the violation of overtime, minimum wage, living wage, prevailing wage, or equal pay laws.

Sec. 22-6. Severability and Construction.

If any section, subdivision, sentence, clause, phrase or other portion of this local law, or the application of this amendment to any person or circumstance, is for any reason, declared unconstitutional or invalid, in whole or in part, by any court of competent jurisdiction, such portion shall be deemed severable and such unconstitutionality or invalidity shall not affect the validity of the remaining portions of the local law that added this subchapter, which remaining portions shall remain in full force and effect. <<

Section 3. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
Section 4. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of this ordinance, including any sunset provision, shall become and be made a part of the Code of Miami-Dade County, Florida. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word.

Section 5. This ordinance shall become effective ten (10) days after the date of enactment unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Board.